MArrca OF P—R--
In DEPORTATION Proceedings
A-11322755
Decided by Board August 5, 1960
Expatriation—Section 401(j), Nationality Act of 1940, as amended—Evidentiary
standard not satisfied.
Evidentiary ,standard applicable to expatriation cases precludes finding of loss
of citizenship under sertion 401(j) of Nationality Act in circumstances
where native-born citizen was taken to Mexico by his parents at age 6 in
1930 or 1931 and did not return here until 1950, despite his testimony, later
repudiated, that he remained abroad in deference to the wishes of his parents who refused him permission to return to the United States at an earlier date because of fears regarding his liability for wartime military service.
CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Entry without inspection.
BEFORE THE BOARD
DISCUSSION : By order dated August 9, 1957, the special inquiry
officer ordered respondent deported on the charge that at the time of
his last entry from Mexico during the summer of 1955, he was not
inspected (as an alien). The special inquiry officer found that respondent who was born December 3, 1025, in El Monte, California,
and was taken to Mexico by his parents in 1930 or 1931, where he
resided until 1950, lost his United States citizenship uursuant to
section 401(j), Nationality Act of 1940, 54 Stat. 1137, as amended
by the Act of September 27, 1944,
58 Stat. 740, 1 by remaining out
of this country on and after September 27, 1944, until November 10,
1950, for the purpose of evading service in the Armed Forces of the
United States. Therefore, upon arrival in 1055, he was an alien and
subject to inspection as such.
1 Sec. 401 provides that:
A person who is a national of the finitad States, whothor by birth or naturalization, shall lose his nationality by: … (3) Departing from or remaining outside of the jurisdiction of the United States in time of war or during
a period declared by the President to be a period of national emergency for
the purpose Of evading or avoiding training and service In the land or naval
forces of the United States.
30
There was introduced as evidence in the present proceeding exhibit 2, a complete transcript of the testimony before the board of
special inquiry at Calexico, California, on March 27, 1952, the May
20, 1952, decision of the Assistant Commissioner, and the December 30, 1952, decision of the Board of Immigration Appeals. The
special inquiry officer pointed to the fact that on the basis of the
alien's testimony and admissions before the board of special inquiry
on March 27, 1952, the Board of Immigration Appeals in its decision
of March 30, 1952, found that respondent had remained in Mexico
from 1944 to 1950 to evade and avoid training and service and had,
therefore, lost his United States citizenship.
In the proceeding now before us, respondent testified that he was
unable to remember any of the questions and answers, except one,
as reflected by the transcript of the testimony before the board of
special inquiry at Calexico, California, on March 27, 1952. Respondent denied his initial testimony to the effect that (1) his mother did
not want him to come to the United States because of fear that he
would be inducted into the military service of this country; (2) that
his parents would not give him permission to come to the United
States; (3) that he had remained out of the United States from the
time he was 18 years of age until the year 1950, because he did not
want to serve in the Armed Forces of the United States; and (4) that
he was afraid to do so.
Respondent's testimony in the present proceeding is also to the
effect that he did not know he was born in the United States or that
he was a citizen of this country until the year 1947 when he was
informed for the first time by his father. This special inquiry officer
made a point of the fact that respondent was unable to give any
reason why he remained out of the United States from the time he
was 18 years of age in 1943 until the year 1950. However, respondent claims that haa ha known that he was a citizen of the United
States and had he had evidence of such citizenship he would have
come to this country before the year 1950. Respondent's brother
came to the United States in 1946 or 1947, and according to respondent's present testimony it was about that time the father told him,
respondent, that he had been born in the United States. Respondent's brother obtained a birth certificate for him and brought it to
respondent in Mexicali, Mexico. Three years thereafter, 1950, respondent entered the United States by presenting such birth certificate and went to El Monte, California, to join his brother; he
did not have information concerning the requirement for registering
for military service until he came to the United States in 1950,
and he thereafter registered in December of that year at Alhambra,
California; he was willing then to serve in the armed forces if
called; and he had never thought of coating to the United States
81
until 1950 when he was told by his brother that it would be possible
for him to come if he could obtain a birth certificate for him. Respondent also testified that he first learned that the United States
was at war after his arrival in this country in 1950, and that he
had never requested permission from either of his parents to come
to the. United States in 1943, 1944 or 1945.
Respondent also denied that in his previous testimony he stated
that his father and mother had always been well and strong. While
it appears he so stated, he was testifying as of 1943, when he reached
his 18th birthday. As a matter of fact, he also testified at that time
that his mother had died of pneumonia after a short illness; that
she had had several heart attacks from the year 1940 until her
death in 1949; and that his father had been slightly incapacitated
by the loss of some fingers and toes.
The special inquiry officer indicated that respondent's sworn testimony in 1952 2 materially conflicts with his testimony in the present
proceedings The special inquiry officer felt that he would not be
justified at this time in rejecting respondent's prior testimony to
accept his present version of the truth of the matter, citing United
States ex rel. Tsevdos v. Reimer, 108 F.2d 860, cert. den.
310 U.S.
645; cf. United States ex rel. Schlirnmgen v. Jordan,
164 F.2d 633;
United States ex rel. Chartrand v. Karnuth,
31 F. Supp. 799.
The special inquiry officer also cited Matter of C—D—, 6 485 -
(Jan. 4, 1955), in which this Board held that
United States citizenship was lost under section 401(j) of the Nationality
Act of 1940, as amended, where the individual had a desire to return to the
United States on and after September 27, 1944, but voluntarily assented to
the wishes of his parents that he remain in Mexico because they were unwilling to have him serve in the Armed Forces of the United States. The
motive of the parents for refusing him permission to return to the United
States is imputed to the child because he voluntarily assented to their wishes.
[Ming Matter of if — , 2-910 1947).]
The special inquiry officer accordingly concluded that the standard
of proof required to establish expatriation in this case having been
met, the respondent had thereby lost his American citizenship under
section 401(j) of the Nationality Act of 1940, by remaining outside
the United States for the purpose of avoiding training and service
in the land or naval forces of the "United states. Gonzales v. Laluityn,
350 U.S. 920 (Dec. 12, 1955).
Counsel, on the other hand, submitted a brief in conjunction with
the appeal in which he argues that on the basis of the decision of the
United States Supreme Court in Gonzales v. Landon,
350 U.S. 920
(Dec. 12, 1955), the Board reconsider its order of December 30, 1952,
and find that respondent has not lost his American citizenship
2 See Appendix "A."
5 See Appendix "B."
32
negnired at birth by expatriation, as alleged, and that proceedings
be terminated.
The Supreme Court of the United States in the case of Gonnalea
v. Landon, supra, held per curium as follows :
The Court is of the view that the standard of proof required in denaturalization cases (see Schneiderman. v. United States,
320 U.S. 118; Baumgartner v.
United States,
322 U.S. 665) is applicable to expatriation cases arising under
§ 401(j) of the Nationality Act of 1940. 54 Stet. 1137, as amended, and ham
not been satisfied in this case. Accordingly the judgment below is reversed
without reaching the •:;onstitutional questions that have been presented.
The facts in the Gonzales case are set forth in the opinion below,
Gonzales v. London, 215 F.2d 955 (Sept. 8, 1.954).4 The pertinent
facts are as follows:
It was stipulated at trial that plaintiff was born in the United States and
was less than two years of age when taken to Mexico. Gonzales testified
that from 1926 to 1946 he resided in Chihuahua, Mexico. His father died
and subject did not come to the United States because his mother would not
let him. He testified that he registered for military service in Mexico in
1042 Ae alsn stated that he was admitted to the United States on April 22,
1946, upon his claim of United States citizenship by presentation of a birth
certificate and baptismal certificate to the Immigration Service. The statements of Gonzales before a board of special inquiry of the Immigration Service in 1947, 1950, and 1952 were introduced in evidence. There was a stipulation that, if the officers were called, they would verify his answers as shown
in the transcript. Gonzales swore that he did not make the answers and that
he had not remained in Mexico in order to avoid military service.
The District Court determined that although plaintiff was a citizen by birth
he had expatriated himself by remaining outside the jurisdiction of the United
States in order to avoid training and service in the armed forces of this country in time of war. Plaintiff claimed that the United States had the burden
of proof to show Gonzales was no longer a citizen. The trial court followed
the contention. But the ground which the Court chose was that. Gonzales
had expatriated by his voluntary act with the intent of avoiding military service. Gonzales swore to the contrary. The finding of the Court is overwhelm.
ingly supported by statements of plaintiff himself before the officers in 1947
and 1950. The objection urged here is that such statements are hearsay and
inadmissible except for purposes of impeachment. The alien's testimony in
the record is contrary to these statements. From the facts in the record, the
plaintiff, an American citizen, remained in Mexico while the United States
was involved in a war in which it was his duty to offer military service. He
made no effort to come within the borders until it was apparent the need for
his services had passed. The Court might have drawn the obvious inference
that the absence from the country was voluntary and for the purpose of
evading military duty. It tne trial court found plaintiff noncredible as a witness and disbelieved his testimony in court as to a contrary state of mind,
the ease of plaintiff would then fail.
These extrajudicial statements of plaintiff are not hearsay. These were
substantive evidence. Tile extrajudicial statements or a party, civil or criminal, are binding upon him and substantive evidence against him., There is
an additional reason for the admission of these well-authenticated utterances
4 See Mackey T. Mendoza-Martinez, 362 U.S. 384 (Apr. 18, 1960).
33
654877-68 —4
of plaintiff since they were statements against interest and thus have further
guarantee of verity. They were clearly admissible for all purposes. The
only question which gave pause at the threshold was whether these were admitted only for the purpose of impeachment. An examination shows that the
record of the hearings, including these statements of plaintiff, was admitted
upon stipulation of counsel for the plaintiff for all purposes.
The judgment of denial of declaration of citizenship was affirmed.
Thus, in the Gonzales case the court below found:
1. The mother would not permit Gonzales to come to the United
States;
2. Gonzales denied prior statements that he remained out of the
United States to avoid military service;
3. Gonzales made prior conflicting statements;
4. Gonzales made statements against interest; and
5. The District Court, which was affirmed by the Circuit Court,
found that Gonzales had become expatriated by his voluntary
act with intent to avoid military service, although Gonzales
swore to the contrary.
In our order of December 30, 1952, in the case now before us, we
found that P—R— testified he had a definite desire to return to
the United States from 1944 to 1950, but was deterred by his mother's
unwillingness for him to serve in the United States Armed Forces.
We also took note of the fact that he admitted he remained outside
the United States to evade and avoid military service during said
period, primarily because he was unwilling to serve in our armed
forces. We concluded that this established expatriation.
Upon reconsideration, we find that our holding in the case now
before us on appeal, as well as Matter of C—D—, 6 185 (Jan. 4,
1955), relied upon by the special inquiry officer, and Matter of M—,
2-910 (B.I.A., 1947), cited by us in Matter of C—D—, supra, to the
effect that the motive of the parents is imputed to the child where he
voluntarily assents to the parents' wishes in refusing him permission
to return to the United States, under circumstances such as are present
in this case has been rejected by the Supreme Court of the United
States in the Gonzales case, supra.
Accordingly, applying the standards set forth by the Supreme
Court in the Gonzales case, we conclude that the evidence herein
does not satisfy same, and, hence, expatriation pursuant to section
401(j), Nationality Act of 1940, 54 Stat. 1137, as amended, has not
been established.
ORDER It is directed that respondent's appeal be sustained.
APPENDIX "A"
Pertinent part of the respondent's testimony before a board of
special inquiry at Calexico, California, on March 27, 1952:
Q. When did you reach the age of 18 years?
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A. On December 3, 1942.
Q. Was your father well and able to work at that time?
A. Yes, he was very well. He has always been very strong.
Q. Have you always been well and strong and able to work?
A. Yes, we are a healthy family. All of us boys have always had good
health.
Q. Has your mother always been strong and able to do her housework prior
to the time of her death in 1949?
A. Yes, sir. She was always well and strong. She died of pneumonia and
was sick for only a short time.
Q. What wages did you and your father and brothers earn during the period 1943, 1944, and 1945?
A. My father received three pesos a day. We boys received two pesos a day.
Q. Could you not have earned at least five times that amount of money
every day in the same kind of work here in the United States?
A. Yes, that is true.
Q. When you reached the age of 18 years on December 3. 1943. did you
consider yourself to be a citizen of the United States or of Mexico?
A. I knew that I was a citizen of the United States but we lived a long
way from the United States and we never had enough money to pay our way
to the United States. J— was the first one to come to the United States and
he was able to come only because we all joined together to pay his way.
Q. When you reached the age of 18 years in 1943, knowing that you were a
citizen of the United States and knowing that you could earn much higher
wages therein, did you desire to come to the United States to work?.
A. Yes, we wanted to come to the United States at that time but our mother
did not want us to come. We saw the contract laborers coming to the United
States at that time, and knew they were going to earn much more money than
we were earning and we were very envious but we could not come because
my mother did not want us to come.
Q. Did you know when you reached the age of 18 years on December 3,
1993, that the United States and Mexico were allies in a perilous war against
powerful enemies?
A. Yes.
Q. Do you know who those enemies were?
A. Germany and Japan.
Q. Knowing that you were a citizen of the United States and knowing that
your country was involved in a perilous war, dill you have any desire as of
December 1943 and thereafter to come to the United States during the late
war and offer your services to your country?
A. Yes, I did. And I desire to enter the United States now and there is a
war going on now.
Q. Did you ask your father and your mother at any time In 1943, 1944,
1945 for permission to come to the United States to work or for any other
purpose?
A. Yes, I Ma but I did not come because my mother was afraid to have
me come at that time.
Q. Did your mother realize that if you came to the United States during
that period that you would be liable to induction into the Armed Forces of
the United States?
A. Yes, she did and that was the reason she did not want us to come.
Q. If you had been able to secure the permission of your parents to come
to the United States during the late war, would you have come?
A. Yes, I would have come.
35
Q. Did you ever register at the American consulate nearest to Tala, Jalisco,
for United States military service?
A. No, I never did go.
Q. Why did you not do so?
A. Until this minute I did not know that there was a way to register at
an American consulate. I knew that I could register there as a citizen of
the United States but my father did not want us to go over there and register.
Q. After September 27, 1944, did you remain outside the jurisdiction of the
United States in time of war or during a period declared by the President
to be a period of national emergency for the purpose of evading or avoiding
training and Service in the land or naval forces of the United States?
A. Yes, I did. But it was not because I was afraid to come. It was because my parents were afraid to have me come on account of the war.
APPENDIX "B"
See also unreported Matter of A 8951306, decided by the
-
Board on October 8, 1956, which held that appellant had become
expatriated under the provisions of section 401(j) of the Nationality
At of 1040. M-- wan born in Los Angeles on April 17, 1917, but
was excluded by a board of special inquiry at Calexico, California,
on April .22, 1952, on the ground that he had expatriated under section 401(j), supra, for remaining outside the United States to evade
or avoid military service after September 27, 1944. He was excluded for failure to present the required immigration documents.
The Acting Assistant Commissioner affirmed the excluding decision
on July 11, 1952, and the Board of Immigration Appeals dismissed
the appeal on March 13, 1953. We stated that expatriation under
section 401(j) occurs when the evidence shows that the citizen had
a desire to come to the United States but was deterred in his resolve
primarily by reluctance to serve in the Armed forces, citing Matter
of M , 2 910 (B.I.A,, 1947). During the 1952 exclusion proceed-
— -
ing M — testified that he lived in the United States from birth until
1922; that in 1937 he obtained a United States citizen's identification
card to permit him to work in the United States; that he registered
for military service at Calexico, California, on December 11, 1940,
and was classified III-A by the El Centro draft board on. January 11, 1941; that he was reclassified I-A on May 18, 1943; that
he departed to Mexico in June 1943 and remained in that country until 1948; and that between 1949 to April 1952 he was working
in California. With regard to his departure in 1943, M— testified
that he left because his grandfather was sick and died. He stated
that he remained in Mexico "not because I was afraid to enter military service in the United States . . . 1 told the local board that
my wife was subject to attacks." He admitted that he departed
from the United States to avoid military service in June 1943. He
stated that he realized that he did wrung. The Board indicated
that on the issue of expatriation the evidence required this Board to
36
find the kiss of citizenship must be clear and convincing citing
Gonzales v. Landon, supra. The Board determined that its finding
of expatriation was based on clear and convincing evidence and was
sufficient to support a finding of loss of citizenship under section
401(j). M— took his case before the United States District Court,
Southern District of California, and on October 6, 1958, that court
found that M— had not lost his citizenship by expatriation as set
forth. The court found that M— was burn in Los Angeles on
April 13, 1917, and that in 1923, at the age of six years, he was taken
by his parents to Mexico where he resided continuously until September 1949 when he moved with his wife and children to the United
States; that he did not depart from or remain outside the jurisdiction of the United States in time of war or during the period declared by the President to be a period of national emergency, or at
any time, for the purpose of evading or avoiding training and service
in the land or naval forces of the United States.
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